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Adversary Proceedings

What is an Adversary Proceeding?

An adversary proceeding is a lawsuit arising in or related to a bankruptcy case that begins by filing a complaint with the court. It is an action commenced by a plaintiff filing a complaint against one or more defendants. A plaintiff is an individual or business that files a formal complaint with the court. A defendant is an individual or business against whom a lawsuit is filed.

How does an Adversary Proceeding commence?

The plaintiff must file the following with the court:

1. A signed original complaint.
2. A signed adversary cover sheet.
3. Any applicable filing fee (The current fee for filing a complaint is $350.00. If a debtor is the plaintiff, no fee is required)

Note : After an adversary proceeding is commenced, a plaintiff is responsible for consulting each individual judge's procedures regarding any applicable pre-trial conference instructions and orders.

What is a Complaint?

A complaint is a written formal statement in which the party initiating the adversary, the plaintiff, presents the facts as he or she believes them to be and demands the relief to which he or she believes he or she is entitled against the defendant, the person or entity the action is brought against. Each complaint is unique and there is no specific form provided by the court.

What is an Adversary Cover Sheet?

A party filing an adversary proceeding must also complete and file Form 1040, the Adversary Proceeding Cover Sheet. The cover sheet summarizes basic information on the adversary proceeding. The clerk of court needs a separate cover sheet for each compliant filed to process the adversary proceeding. The cover sheet and the information contained on it do not replace or supplement the filing and service of pleadings or other papers as required by law, the Federal Rules of Bankruptcy Procedure, or the local rules of court.

What is a Summons?

A summons is a notice used to inform the person named as the defendant of the commencement of the adversary action and the requirement to submit a motion or answer. A defendant's failure to respond can be deemed to be a defendant's consent to entry of a judgment by the bankruptcy court and judgment by default may be taken against a defendant for the relief demanded in the complaint. The summons also states the date of a scheduled pre-trial conference on the proceeding.

After the adversary proceeding has commenced, a summons will be generated and given to the plaintiff for service. If the plaintiff is represented by an attorney, the attorney receives the summons via e-mail through CM-ECF. If the plaintiff does not have an attorney, the plaintiff receives the summons via the U.S. Postal Service.

A plaintiff shall serve a summons with a copy of the complaint to each of the defendants within 7 days of the issuance of the summons (Federal Rule of Bankruptcy Procedure 7004(e)). Usually, this can be done via first class mail (Federal Rule of Bankruptcy Procedure 7004(b)) or by having a person who is not a party to the action and is over the age of eighteen deliver copies of the summons and complaint to each of the defendants (Federal Rule of Bankruptcy Procedure 7004(a)). A plaintiff must file a Certificate of Service with the Court describing the service of process.

What is an Answer?

An answer is a formal written document stating a defendant's response to a complaint. If a complaint is duly served upon a defendant, the defendant shall serve an answer within 30 days after the issuance of the summons, except when a different time is prescribed by the court.

A defendant must serve its answer on the plaintiff (or the plaintiff's lawyer, if there is one) and on the Trustee in the Debtor's bankruptcy case. Service should be made according to Federal Rule of Bankruptcy Procedure 7005. Usually, service may be accomplished by mailing the answer to the plaintiff or the plaintiff's lawyer at the address shown in the complaint with a certificate of service. A certificate of service form is available from the Clerk's office. A defendant must file its answer and the certificate of service with the Court.